Improper, unskilled, or negligent treatment of a patient by a physician, dentist, nurse, pharmacist, or other health care professional.

Physicians and other health care professionals may be held liable for their failure to exercise the ordinary care a reasonably prudent qualified person would exercise under the same or similar circumstances. Negligence is the predominant theory of liability concerning allegations of medical malpractice, making this type of litigation part of tort law. Since the 1970s medical malpractice has been a controversial social issue. Physicians have complained about the large number of malpractice suits and have urged legal reforms to curb large damage awards, whereas tort attorneys have argued that negligence suits are an effective way of compensating victims of negligence and of policing the medical profession.

A person who alleges negligent medical malpractice must prove four elements: (1) a duty of care was owed by the physician; (2) the physician violated the applicable standard of care; (3) the person suffered a compensable injury; and (4) the injury was caused in fact and proximately caused by the substandard conduct. The burden of proving these elements is on the plaintiff in a malpractice lawsuit.

Physicians, as professionals, owe a duty of care to those who seek their treatment. This element is rarely an issue in malpractice litigation, because once a doctor agrees to treat a patient, he or she has a professional duty to provide competent care. The plaintiff must show some actual, compensable injury that is the result of the alleged negligent care. Proof of injury can include the physical effects of the treatment performed by the physician, but it can also include emotional effects. The amount of compensation at issue is usually a highly contested part of the litigation. Causation may also be a vigorously litigated issue because a physician may allege that the injuries were caused by physical factors unrelated to the allegedly negligent medical treatment. For example, assume that a physician is sued for the negligent prescription of a drug to a patient with coronary artery disease and that the patient died of a heart attack. The plaintiff's estate cannot recover damages for the heart attack unless there is sufficient proof to show that the medication was a contributing cause.

The critical element is standard of care, which is concerned with the type of medical care that a physician is expected to provide. Until the 1960s the standard of care was traditionally regarded as the customary or usual practice of members of the profession. This standard was referred to as the "locality rule," because it recognized the custom within a particular geographic area. This rule was criticized for its potential to protect a low standard of care as long as it was embraced by the local medical community. The locality rule also was seen as a disincentive for the medical community to adopt better practices.

Most states have modified the locality rule to include both an evaluation of the customary practices of local physicians and an examination of national medical standards. Physicians are called to testify as expert witnesses by both sides in medical malpractice trials because the jury is not familiar with the intricacies of medicine. Standards established by medical specialty organizations, such as the American College of Obstetricians and Gynecologists, are often used by these expert witnesses to address the alleged negligent actions of a physician who practices in that specialty. Nonconformance to these standards is evidence of negligence, whereas conformance supports a finding of due care.

Other rules govern the standard of care evaluation. A few states apply the "respectable minority rule" in evaluating a physician's conduct. This rule holds that a physician is not negligent merely by electing to pursue one of several recognized courses of treatment. Some states use the "error in judgment rule." This principle exempts a physician from liability if the malpractice is based on the physician's error in judgment in choosing among different methods of treatment or in diagnosing a condition.

Medical malpractice litigation began to increase in the 1960s. Tort lawyers were able to break the traditional "conspiracy of silence" that discouraged physicians from testifying about the negligence of colleagues or serving as expert witnesses. By the 1970s physicians alleged that malpractice claims were interfering with their medical practices, with insurance companies either refusing to write malpractice policies for them or charging inflated premiums. Since then physicians and health care providers have argued that malpractice claims drive up the cost of health care. Jury verdicts in the millions of dollars must be passed on to the consumer in the form of higher insurance premiums and physician fees. In addition, many physicians now practice "defensive medicine" to guard against malpractice claims. Defensive medicine refers to the conducting of additional tests and procedures that are not medically necessary but that would assist in defeating a negligence claim.

Many states have enacted damage award limits that are intended to limit the amount of recovery for noneconomic losses, such as pain and suffering, and punitive damages. Plaintiffs attorneys have contested these changes, arguing that medical malpractice awards account for only one percent of the total yearly national health care expenditures. In addition, they note that malpractice claims are the only effective tool to identify incompetent physicians because the medical profession has refused to aggressively discipline its members.

See: Health Care Law; Managed Care; Patients' Rights; Physicians and Surgeons.

West's Encyclopedia of American Law. Copyright © 1998 by The Gale Group, Inc. All rights reserved.